Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38

HIGH COURT OF AUSTRALIA

HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

ROBYN CHRISTINE FELLOWES APPELLANT

AND

MILITARY REHABILITATION AND COMPENSATION

COMMISSION RESPONDENT

Fellowes v Military Rehabilitation and Compensation Commission

[2009] HCA 38

23 September 2009

B8/2009

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 4 August 2008 and, in their place, order that:

(a) the appeal to that Court be allowed with costs;

(b) the decision of the Administrative Appeals Tribunal made on 7 September 2007 be set aside and, in its place, there be a direction that the respondent determine the amount payable to the applicant for review by the Tribunal assessed under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a right knee condition resulting in a degree of permanent impairment of the applicant of 10% as assessed under Table 9.5 of the applicable Guide to the Assessment of the Degree of Permanent Impairment; and

(c) the respondent pay the applicant's costs of the review by the Administrative Appeals Tribunal.

On appeal from the Federal Court of Australia

Representation

P J Hanks QC with R F King-Scott for the appellant (instructed by Slater & Gordon Lawyers)

T M Howe QC with L A Walker for the respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Fellowes v Military Rehabilitation and Compensation Commission

Workers' compensation – Injury resulting in permanent impairment – Under s 24 of Safety, Rehabilitation and Compensation Act 1988 (Cth), where "an injury to an employee results in a permanent impairment", respondent liable to pay compensation "in respect of the injury" – Amount of compensation fixed by degree of permanent impairment resulting from injury as assessed under Guide to the Assessment of the Degree of Permanent Impairment ("Guide") – Guide provides that "[w]here two or more injuries give rise to the same impairment a single rating only should be given" – Appellant previously compensated for injury to left knee resulting in permanent impairment – Whether appellant entitled to compensation for separate injury to right knee resulting in permanent impairment to same degree – Whether "degree of permanent impairment" refers to impairment of whole person or impairment to particular part of person's body.